Holy matrimony is in no danger from the Supreme Court. Oh sure, there will be some confusion in terminology, if the word “marriage” comes to have more than one definition. The English language is full of such oddities, but I’ve never seen the best man at a wedding start buttering a slice of crisp bread when a toast is called for.
And honestly, this may be exactly what marriage needs in order to recover its sacramental focus and regain respect. Placing its regulation under secular rather than sacramental authority was the first step on a long slippery slope that led to the train wreck of a Kardashian wedding.
It was and is appropriate for the government to acknowledge a cornerstone sacrament of the church, in keeping with the principle of “separation of church and state” to protect the church from interference by the state. Not just the Christian church, although clearly that’s where our British roots are planted, but all faiths. Legal and theological attitudes have evolved, but always pointed back to the essential foundational principles of biology, faith and tradition that birthed marriage.
Marriage from a civil point of view has been a way to promote order in family relationships by putting parameters around the only human relationship that has the potential to produce new human beings. Marriages that don’t produce children are still part of the social fabric that reinforces the pattern and provides a clear default setting for organizing family relationships in legal matters. Individuals have always been free to go outside the defaults and make other legal arrangements.
In the state of Washington, we created a new category of State Registered Domestic Partnerships in 2007. It grew out of a demand from the culture to provide a simpler legal framework for people who choose single gender relationships for their household. As a legal convenience, it drew on the marriage taboos to define who was eligible for such a union, even though the principle behind those taboos didn’t apply.
It also made an exception for dual gender couples where at least one was over the age of 62 expressly to allow them to circumvent marriage case law by forming a domestic partnership that was not marriage. The principle here, too, was cultural convenience. In a culture ruled by law and lawyers, civil unions were a way to formalize relationships to deal with the law. It was a nice, civil solution.
But it wasn’t enough for the LGBT community. And they kept pushing. And now Washington recognizes single gender marriages while still allowing the exception for older couples who want to avoid some of the legal responsibilities of marriage. Will these retired couples need to dissolve their SRDP if DOMA is thrown out, or risk losing whatever federal benefits they were trying to protect?
As the Supreme Court debates the issues in the two cases before it, these questions first raised in 2007 still need answers:
- If marriage is no longer tied to its biological, religious or traditional roots as a way to define male-female relationships, what foundational principle(s) should be used to set the sideboards?
- Why should degree of familial relationship of the two parties matter to the government if there is no possibility of biological procreation?
- Why should two closely related parties be denied access to this legal framework to pass on property and enjoy other legal benefits of a civil marriage?
- On what basis can this new definition of civil marriage be limited to two people? To only one marriage at a time?
- What is the civil purpose of marriage in this new culture?
Cultural convenience is a poor foundation for law but a great foundation for litigation when there is no blueprint to follow.